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NaraIn Singh Hira Singh and anr. Vs. the State - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtPunjab and Haryana High Court
Decided On
Case NumberCriminal Revn. No. 419 of 1956
Judge
Reported inAIR1958P& H372; 1958CriLJ1220
ActsConstitution of India - Article 227; Punjab Gram Panchayat Act, 1953 - Sections 21, 21(1) and 23; Punjab Village Common Lands (Regulation) Act, 1954 - Sections 3; Punjab Village Common Lands (Regulation) Act, 1953 - Sections 3; Punjab Gram Panchayat Act, 1952 - Sections 21 and 23; Code of Criminal Procedure (CrPC) , 1973 - Sections 439
AppellantNaraIn Singh Hira Singh and anr.
RespondentThe State
Appellant Advocate H.S. Gujral, Adv.
Respondent Advocate Chetan Das Dewan, Asstt. Adv. General and; Daljit Singh, Adv. for Bhutta Panchayat
DispositionPetition dismissed
Cases Referred(R) and Nanu Mal v. Emperor
Excerpt:
.....well, tank, reservoir, pool, pit, ditch, depression or excavation therein which may appear to the gram panchayat to be injurious to health or offensive to the neighbourhood; (iv) to remove any dirt, dung, night-soil, manure or any noxious or offensive matter therefrom and to cleanse the land or building; if he appeal's and shows cause against the order, the gram panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper no further proceedings shall be taken in the case. if it is not so satisfied the order shall be made absolute. 823 of 1955 :(air 1957 punj 77) (c) was under section 439 of the code of criminal procedure as well as under article 227 of the constitution of india and was decided by bishan narain, j. the state (a) were endorsed. when he..........to them of article 227 of the constitution of india.3. section 21 of the act confers on a gram panchayat as defined in the act the power to require removal of an encroachment and nuisance and is in the following terms:'21. (1) a gram panchayat on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may make a conditional orderrequiring within a time to he fixed in the order (a) the owner or the occupier of any building or land- (i) to remove any encroachment on a public street, place or drain; (ii) to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, urinal, water-closet, drain, cess-pool or other receptacle for filth, sullage-water, rubbish or refuse or to remove or alter any door or trap or construct.....
Judgment:

S.B. Capoor, J.

1. The legal question raised in this case and referred to the Full Bench is whether the proceedings under Sections 21 and 23 of the Punjab Gram Panchayat Act, 1952 (Punjab Act No. IV of 1953), hereinafter referred to as the Act, are of an administrative or of an executive nature, so that a petition under Section 439 of the Code of Criminal Procedure or under Article 227 of the Constitution of India would not He to this Court.

2. It has been conceded before us that Section 439 of the Code of Criminal Procedure is not applicable to such proceedings and accordingly it remains only necessary to determine the applicability to them of Article 227 of the Constitution of India.

3. Section 21 of the Act confers on a Gram Panchayat as defined in the Act the power to require removal of an encroachment and nuisance and is in the following terms:

'21. (1) A Gram Panchayat on receiving a report or other information and on taking such evidence, if any, as it thinks fit, may make a conditional orderrequiring within a time to he fixed in the order

(a) the owner or the occupier of any building or land-

(i) to remove any encroachment on a public street, place or drain;

(ii) to close, remove, alter, repair, cleanse, disinfect or put in good order any latrine, urinal, water-closet, drain, cess-pool or other receptacle for filth, sullage-water, rubbish or refuse or to remove or alter any door or trap or construct any drain for any such latrine, urinal or water-closet which opens on to a street drain, or to shut off Such latrine, urinal or water-closet by a 'sufficient roof and wall or fence from the view of persons passing by or dwelling in the neighbourhood;

(iii) to cleanse, repair, cover, fill-up, drain off, deepen or to remove water from a private well, tank, reservoir, pool, pit, ditch, depression or excavation therein which may appear to the Gram Panchayat to be injurious to health or offensive to the neighbourhood;

(iv) to remove any dirt, dung, night-soil, manure or any noxious or offensive matter therefrom and to cleanse the land or building;

(b) the owner of any wall or building, which is deemed by the Gram Panchayat to be in any way dangerous, to remove or repair such wall or building;

(c) the owner or occupier of any building or property to keep his building or property in a sanitary state;

(d) the owner of any dog or other animal suffering or reasonably suspected to be suffering from rabies or which is dangerous, to destroy or confine or cause to be confined such dog or animal;

(e) the owner or occupier of any agricultural land to destroy Pohli or any other such harmful weed from such land;

(f) the owner or occupier concerned to reclaim any unhealthy place;

(g) the owner or occupier of any building or land to maintain in proper repair the level and surface of any road or street passing in front of the building or through his land;

(h) the owner or person-in-charge of a private 'khal' to keep it in a state of reasonable repair. Or if he objects so to do to appear before it, at a time and place to be fixed by the order, and to move to have the order set aside or modified in the manner hereinafter provided. If he does not perform such act or appear and show cause, the order shall be made absolute. If he appeal's and shows cause against the order, the Gram Panchayat shall take evidence and if it is satisfied that the order is not reasonable and proper no further proceedings shall be taken in the case. If it is not so satisfied the order shall be made absolute.

(2) If such act is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing it from such persons.'

4. Under Section 23 of the Act any person who disobeys an order of the Gram Panchayat made under Section 21 or 22 shall be liable to a penalty which may extend to Rs. 25/-; and if the breach is a continuing breach, with a further penalty which mayextend to one rupee for every day after the first during which the breach continues, provided that the recurring penalty shall not exceed Rs. 500/-.

5. These Sections of the Act have come up for consideration before this Court in several petitions which have been mentioned in the referring orders. Cri. Revn. No. 367 of 1956 (Punj) (A) was a petition under Sections 435 and 439 of the Code of Criminal Procedure directed against an order of a Gram Panchayat under Section 23 of the Act and G. D. Khosla, J., observed that the order of the Panchayat under Section 23 was an executive order whick could be reviewed by the Punjab Government under Section 100 of the Act. The petitioner had not moved the Punjab Government to take action under Section 100, and the learned Judge considered that until he did so, he would not be justified in interfering at that stage.

He further held that that was not a judicial matter and a criminal revision did not, in his opinion, lie, although possibly a petition under Article 226 of the Constitution might be competent when the petitioner had exhausted all lawful remedies which were open to him under the Act.

The same observations were repeated by the same learned Judge in Cri Revn. No. 533 of 1959 (Punj) (B) decided on the same day as Dalip Sirigh v. The State (A). Cri Revn No. 823 of 1955 : (AIR 1957 Punj 77) (C) was under Section 439 of the Code of Criminal Procedure as well as under Article 227 of the Constitution of India and was decided by Bishan Narain, J. On a consideration of the general scheme of the Act and the nature of the rights conferred on the Gram Panchayats under the Act, he was of the view that the order under Section 23 of the Act being administrative in nature the criminal Courts had no jurisdiction to interfere with it, and the observations made by G.D. Khosla, J., in Dalip Singh v. The State (A) were endorsed.

In Cri. Revn. No. 947 of 1955 (Punj) (D), which was also under Section 439 of the Code of Criminal Procedure and Article 227 of the Constitution of India, the same learned Judge following his view in Sukhbir Singh v. Gram Panchayat Mauza Pakhowal (C) dismissed the petition. In the next case, (Cri Revn. No. 495 of 1956) (Punj) (E), which was under Section 439 of the Code of Criminal Procedure, Gurnam Singh, J. followed the decision in Dalip Singh v. The State (A). It will be noticed that in none of these cases there was any discussion of the applicability of Article 227 of the Constitution of India, to proceedings under Sections 21 and 23 of the Act.

6. In the next case, Cri. Revn. No. 615 of 1956 (Punj) (F), which was under Sections 435, 439 and 561 of the Code of Criminal Procedure and Article 227 of the Constitution of India, Mehar Singh, J. observed that the order under Section 23 of the Act did not arise out of judicial proceedings and no revision was competent against such an order nor could it be considered under the supervisory jurisdiction under Article 227 of the Constitution, and he also referred to the decision in Dalip Singh v. The State (A).

In the two remaining cases, Cri. Revn. No. 1087 of 1936 (Punj) (G) and Cri Revn No. 1088 of 1956 (Punj) (H), the same learned Judge, after referring to some of the previous decisions, mentioned above, has come to the conclusion that the disobedienceof an order made by a Gram Panchayat under Section 21 of the Act is not a criminal offence, and merely because to enforce compliance of an order under that section a penalty is provided for under Section 23 of the Act, that does not make it an offence.

'It was urged before him that this Court could interfere under Arts. 226 and 227 of the Constitution, and he held that since the petitions were under Article 226 he did not go into that matter, while under Article 227 the power of superintendence was in judicial matters or at the most in regard to quasi-judicial matters but not in regard to executive matters or executive orders and so that power could not assist the petitioners in those cases.

7. It is, therefore, necessary to consider as to what is the true nature of the functions being performed by a Gram Panchayat when acting under Sections 21 and 23 of the Act. It has been contended before us that these particular sections find their place in Chapter III, which deals with the administrative functions of a Panchayat and it should, therefore, be inferred that these particular functions of the Panchayat are also administrative functions. Chapter III is headed 'Gram Panchayats --Conduct of Business, Duties, Functions and Powers.' Chapter IV is headed 'Criminal Judicial Functions,' and chapter V 'Civil and Revenue Judicial functions' while Chapter VI contains 'general provisions applicable to judicial proceedings.'

Under SECTION 97 of the Act, which finds its place in Chapter IX 'Control,' the Deputy Commissioner or the Sub-Divisional Officer, as the case may be is given the power to suspend the execution of any resolution or order of a Gram Panchayat other than an order passed in judicial proceedings, and under Section 100 in the same chapter the Government may call for and examine the record of proceedings of any Gram Panchayat for the purposes of satisfying itself as to the legality or propriety of any executive order passed therein and may confirm, modify or rescind the order.

The argument, therefore, is that the Act makes a sharp distinction between executive and judicial orders, and since the functions of the Panchayat under Sections 21 and 23 are not either criminal judicial functions under Chapter IV or civil and revenue judicial functions under Chapter V, it must be concluded that they are executive or administrative functions.

8. Whether a particular section is included in a certain chapter or not cannot, however, he of any real consequence in determining whether the power conferred by that section on the authority or tribunal is merely administrative or partakes of the nature of judicial functions. It is further necessary to consider us to what is the true nature of the functions performed or power exercised.

The tests to determine whether a particular tribunal is a judicial tribunal or not have been approved by their Lordships of the Supreme Court in a number of cases, such as Bharat Bank, Ltd., Delhi v. Employees of the Bharat Bank Ltd., Delhi, ATR 19W S C 188 (I), Province of Bombay v. Khushaldas S. Advani, AIR 1950 S. C. 222 (J) and Maqbool Hussain v. State of Bombay, AIR 1953 SC 323 (K). These requisites were succinctly stated as follows by the Committee on Ministers' Powers Report appointed in England in 1932 :

'A true judicial decision presupposes en exist-ing dispute between two or more parties and then involves four requisites : (1) The presentation (not necessary orally) of their case by the parties to the dispute; (2) if the dispute between them is a question of fact, the ascertainment of the fact by means of evidence adduced by the parties to the dispute and often with the assistance of argument by or on behalf of 'the parties on the evidence; (3) if the dispute between them is a question of law, the submission of legal argument by the parties, and (4) a decision which disposes of the whole matter and by a finding upon the facts in dispute and application of the law of the land to the facts so found, including where required a ruling upon any disputed question of law.'

Now, a Gram Panchayat acting under Section 21 in the first instance makes a conditional order on the basis of information or report received by it or on taking such evidence, if any, as it thinks fit, and the person against whom the conditional order is made has, if he objects to the order, the right to appear before it and to show cause with a view to have the order set aside or modified. When he does so appear, the Gram Panchayat is required to take evidence and it can make the conditional order absolute only if it is satisfied that that order was reasonable or proper.

Thus, there is a dispute affecting legal rights before the Gram Panchayat, the parties interested in which are on one side the person against whom the conditional order has been made and on the other the person who may have given the report or information to the Panchayat. The Panchayat is required to decide the questions involved in the dispute after talcing evidence and on the basis of the evidence led before it.

Its decision cannot be arbitrary or unfettered; and the conditional order made by it is to be made absolute only if it is reasonable and proper, otherwise it must be set aside. That decision so far as the Panchayat is concerned disposes of the whole matter finally. The Gram Panchayat acting under Section 21 of the Act would, therefore, appear to have all the attributes of a judicial tribunal. The crucial test, as stated in Pandyan Insurance Co. Ltd., v. K.J. Khambatta, (S) AIR 1955 Bom 241 (L) is whether the statute which sets up the tribunal imposes upon it the duty to act judicially and if such a duty is cast upon the tribunal then the High Court is empowered to exercise its jurisdiction over that tribunal under Article 227.

Having regard to the express provisions of Section 21 of the Act, there appears to be no scope for the contention that the Gram Panchayat while exercising its functions under this section is acting otherwise than judicially. This section is analogous in its terms to Section 133 of the Code of Criminal Procedure, and it could not for a moment be contended that an order under that section is a purely executive order or that the tribunal making that order is not subject to the Superintendence of the High Court under Article 227 of the Constitution of India.

9. Under Sub-section (2) of Section 21 of the Act, if the act in question is not performed within the time fixed, the Gram Panchayat may cause it to be performed and may recover the costs of performing itfrom such person. Section 23 of the Act provides another way of enforcing the order of the Gram Panchayat, which is that the person who disobeys that order is liable to a penalty.

Neither this section nor any other section of the Act (apart from schedule 1-A thereof) lays down which tribunal or Court is to adjudge the penalty, and proceedings for this purpose would, but for the provisions of schedule 1-A, lie in the Court of a competent Magistrate under the provisions of the Code of Criminal Procedure.

Clause (o) of Section 4 of this Code defines an 'offence' as meaning 'any act or omission made punishable by any law for the time being in force, and, according to Clause (s) of Section 3 of the Act, the expression 'offence' is to have the same meaning as in Clause (o) of Section 4 of the Code of Criminal Procedure, 1898. Schedule 1-A to the Act specifies the offences cognizable by a Gram Panchayat and item (k) under this schedule is as follows:

'(k) Under this Act or under any rule or by-law made thereunder.'

It is only in view of this that a Gram Panchayat would appear to have jurisdiction to impose a penalty under Section 23 of the Act. Schedule 1-A contains under separate heads various enactments against each of which (except against item (k)) the section or sections, offences under which are cognizable by the Gram Panchayat, are mentioned. It has been contended on behalf of the respondent that since Section 23 of the Act is not specified against item (k), it should be held that that section does not create any offence.

Inasmuch as item (k) refers not only to the offences under the Act but to those under any rule or by-law made thereunder, obviously no sections could be specified against that item. The only penal sections under the Act are 23 and 109. The latter provides that any person tampering with the property of the Gram Panchayat shall be punishable with fine which may extend to Rs. 25/- and under Sub-section (2) of Section 109 the fine is referred to as a penalty.

It appears, therefore, that the words 'fine' and 'penalty'' are used in the Act as interchangeable and with the same connotation and from the use of the word 'penalty' rather than 'fine' in Section 23, it cannot be inferred that that section contemplates executive action and not a judicial function. In the same connection it was contended that merely referring to a certain act or omission as an offence does not actually make that an offence, and it was pointed out on the basis of Queen Empress v. Ram Pal, ILR 20 All 95 (M) and Secretary of State v. Gobind-ram Jaichandrai, AIR 1930 Sind 162 (N) that a passenger travelling in a train without having a proper pass or a proper ticket though liable to a penalty does not commit any offence. If these arguments were to be accepted, the logical conclusion would be that there would be no provision in the Act enabling the Gram Panchayat to adjudge the penalty under Section 23 of the Act.

10. According to Section 38 of the Act, which occurs in Chapter IV 'Criminal Judicial Functions', the criminal jurisdiction of a Gram Panchayat shall be confined to the trial of offences specified in schedule 1-A. That schedule includes offences under the Act, viz., under Sections 23 and 109, and in dealing with such offences the Gram Panchayat obviously discharges criminal judicial functions in accordance with the procedure laid down in Chapter IV and Chapter VI so far as it may be applicable.

In determining the liability under Section 23, the Gram Panchayat would have to act judicially and before coming to a finding consider any defences whether on fact or law which may be put forward by the persons concerned and to weigh the evidence led before it.

All the observations made above with regard to the true nature of its functions under Section 21 of the Act would apply equally to the discharge of its functions under Section 23, and our conclusion is! that the Gram Panchayat while proceeding under Sections 21 and 23 of the Act is acting judicially and that therefore a petition challenging its orders under either of those sections would lie to the High Court under Article 227 of the Constitution of India. The reference is answered accordingly, and the case should be returned to the Single Bench for disposal in accordance with law.

A.N. Bhandari, C.J.

11. I agree.

S.S. Dulat, J.

12. I agree.

(After the opinion of the Full Bench was received, the final judgment was delivered by:)

S.B. Capoor, J.

13. (D/-9-5-1958) This is a petition under Article 227 of the Constitution of India by Narain Singh and his son Kartar Singh against the Gram. Panchayat of village Bhutta, tahsil and district Ludhiana directed against the orders of Gram Panchayat made under Sections 21 and 23 of the Punjab Cram Panchayat Act, 1952 (Punjab Act No. IV of 1953), hereinafter to be referred to as the Act.

14. The facts briefly are that on 3-11-1954, the Gram Panchayat issued notices under Sub-section (1) of Section 21 of the Act directing the petitioners to remove the encroachment effected by them in the public street of the village. These encroachments consisting of a kitchen, a ladder as well as some bushes etc. were placed on the public way. The petitioners were called upon to remove the alleged encroachments by 20-11-1954, or if they objected to do so, to show cause to have the order set aside.

Those notices were duly served on the petitioners who moved the Additional District Magistrate for transfer of the proceedings from the Panchayat, which application was, however, rejected. The Panchayat again issued on 13-2-1955, notices in the above terms giving the petitioners opportunity either to remove the encroachments by 28-2-1955, or to show cause on 18-2-1955, why the order should not be made absolute.

They refused to accept service of the notices and the service was effected by means of affixation. No objection was made within the prescribed time nor were the alleged encroachments removed. The Panchayat, thereupon, initiated proceedings under Section 23 of the Act, in response to which the petitioners could not show any sufficient cause why they should not be proceeded against under that section nor did they avail of the opportunity given to them to produce defence.

The Panchayat, therefore, under Section 23 of the Act sentenced each of them to pay a fine of Rs. 10/- and also to a continuing fine of eight annasper day. These orders of the Panchayat are challenged under Article 227 of the Constitution of India.

15. In the first place it is urged that there was no report before the Panchayat about the petitioners having made any encroachments and that the Pancha-yats could not under Sub-section (1) of Section 21 of the Act take action suo motu. I find no such bar in the statute itself. Mr. Harban Singh Gujral, on behalf of the petitioners, has based his argument on the analogy of Section 133 of the Code of Criminal Procedure and he has relied on Mohd. Ayub v. State, AIR 1952 All 215 (O).

Even in that case it was held that a Magistrate acting under Sub-section (1) of Section 133 of the Code of Criminal Procedure can initiate proceedings on his own knowledge, though it was considered that when it comes to the stage of passing a final order, the Magistrate should transfer the proceedings or cause them to be transferred to another Magistrate. Under the scheme of the Act, the Panchayat has been conferred certain administrative functions in respect of public places within its jurisdiction.

It appears from the Panchayat's final orders, dated 2-4-1955, that the Panchayat initiated the action after itself noticing the alleged obstruction in the passage and the inconvenience it caused to the village people using this path, and it would appear that the Panchayat would be failing in its duty, if, before initiating action, it waited until someone made a formal complaint before it.

Whatever may be the position under Section 133 of the Code of Criminal Procedure, which provides elaborate safeguards such as the right of the respondent to claim a jury, according to Sub-section (1) of Section 21 of the Act if the respondent neither complies with the order nor moves the Panchayat to have the order set aside or modified, the Panchayat shall make the order absolute. In the present case in response to the notices issued under Sub-section (1) of Section 21 of the Act, the respondents chose not to appear before the Panchayat and they cannot be heard to say in the High Court that that order was without jurisdiction.

16. The next point taken by Mr. Gujral was that in view of the provisions of Section 3 of the Punjab Village Common Lands (Regulation) Act, 1953 (Punjab Act No. T of 1954) the Shamlat Deh of the village vested in the Panchayat and hence the village streets and paths must aslo be taken to have been vested in the Panchayat, so that if it took action to have encroachments cleared from the village streets, that would be acting as a judge in its own cause.

The aforesaid Act was made with the object of giving non-proprietors in the village proprietary rights in the sites under their houses inside the Aba-dis. This is clear from the Objects and Reasons pub-blished in the Punjab Gazette, Extraordinary, dated 6-4-1953. That Act has, therefore, nothing to do with the village streets or paths inside the Abadi and Mr. Gujral can derive no help from the following observations made in Ch. Kure Singh v. State of Punjab, 57 Pun LR 479 at p. 481 : (AIR 1956 Punj 88 at p. 89) (F) :

'The village common land or shamilat deh comprises not only the uncultivated pasture lands but also the abadi, deh, the gora deh which is the vacant space reserved for the extension of village dwellings and such amenities as a well, a pond etc.'

17. The real contention on behalf of the petitioners is that three of the Panches constituting the Panchayat which passed the impugned orders are inimical to them, & in this connection reference was made to Shri Joti Parshad v. The Superintendent of Police, Gurgaon, etc. L. P. A. No. 1 of 1956: (AIR 1958 Punj 327) (Q) in support of the proposition that an administrative tribunal should not be permitted to deal with a case if it is biased against the person against whom action is sought to be taken.

The question for decision in the case cited was whether the provisions of Article 311(2) of the Constitution of India were duly complied with or not in the matter of the dismissal of the appellant. In the present case we are dealing with the statutory powers of the Gram Panchayat. The petitioners did not in the first instance choose to appear before the Panchayat, but in the proceedings under Section 23 of the Act they did appear though they did not avail of the opportunity of producing defence.

In the circumstances the orders made against them cannot be set aside in the exercise of this Court's extraordinary jurisdiction under Article 227 merely because some allegations are made as to some of the Panches being biased against the petitioners.

18. The next argument advanced was that the building which the Panchayat directed the petitioners to remove was an old one and that several years previously proceedings were initiated against the petitioners in respect of that building under Section 133 of the Code of Criminal Procedure but that notice was discharged. These are all, however, matters of evidence which should have been agitated before the Panchayat and the authorities cited in this connection. Emperor v. Tulsi Ram, AIR 1938 Lah 523 (R) and Nanu Mal v. Emperor, AIR 1939 Lah 452 (S) have obviously no application.

A revision petition was moved before the Magistrate First Class, Ludhiana, against the order of the Panchayat under Section 23 or the Act. The Magistrate in his order, dated 23-3-1956 observed that he had himself inspected the site and that the ladder and the kitchen were surely encroachments on the public way. He, therefore, upheld the order of the Panchayat and dismissed the revision petition. It appears that the petitioners are trying to take advantage of their own obstructive tactics and to substitute the judgment of the High Court for that of the Panchayat. The last point urged was that a continuing fine could not be imposed in this case, but such a continuing fine is clearly authorised by terms of Section 23 of the Act.

19. I, therefore, see no force in this petitionand dismiss it.


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